dissenting:
The issue in this case is whether the plaintiff, as a matter of law, was one of the persons “whom the [City] intended and permitted to use the [street] in a manner in which and at such times as it was reasonably foreseeable [to the City] that it would be used.” (Ill. Rev. Stat. 1975, ch. 85, par. 3 — 102(a).) The majority hold, as a matter of law, that the plaintiff was not one of those persons. I disagree; and I do so with the awareness that the greater precedential weight, but not all of it, lies on the majority side of the scale. But I respectfully disagree with the holdings of some of the cases, all appellate court opinions, cited by the majority: Deren v. City of Carbondale (1973), 13 Ill. App. 3d 473, 300 N.E.2d 590; Swett v. Village of Algonquin (1988), 169 Ill. App. 3d 78, 523 N.E.2d 594; and Vlahos v. City of Chicago (1990), 198 Ill. App. 3d 911, 556 N.E.2d 660. I also disagree with another case, not cited by the parties or the majority, Vance v. City of Chicago (1990), 199 Ill. App. 3d 652, 557 N.E.2d 494. Other cases cited by the majority may be distinguished: Risner v. City of Chicago (1986), 150 Ill. App. 3d 827, 502 N.E.2d 357; Mason v. City of Chicago (1988), 173 Ill. App. 3d 330, 527 N.E.2d 572; and Crutchfield v. Yellow Cab Co. (1989), 189 Ill. App. 3d 1091, 545 N.E.2d 961.
First, the essential facts: This accident occurred on December 29, 1976; the closest crosswalk was one-half mile away. The decedent had lawfully parked his car on one side of the street and had crossed to the other side. He was fatally injured when he was recrossing the street to his car. The City breached its duty to adequately light the area where the decedent crossed Busse Highway; the inadequate lighting was a proximate cause of the injury; and the inadequate lighting had existed for a sufficient time to place the City on notice. Last, the agreed law: A municipality has no duty to provide any crosswalks (Horrell v. City of Chicago (1986), 145 Ill. App. 3d 428, 495 N.E.2d 1259) or lighting (Baran v. City of Chicago Heights (1969), 43 Ill. 2d 177, 251 N.E.2d 227). But if a municipality does undertake such improvements, it is liable for injuries which result from deficient or inadequate ones. (Greene v. City of Chicago (1978), 73 Ill. 2d 100, 382 N.E.2d 1205.) The majority concede, under these facts and the law, that the City owed a duty to provide adequate lighting, but only to motorists or pedestrians in a marked crosswalk or in certain very limited areas which will be discussed later.
The earliest case on this question (and relied on by most of the subsequent cases cited by the City) is Deren v. City of Carbondale (1973), 13 Ill. App. 3d 473, 300 N.E.2d 590. The plaintiff was struck by a hit-and-run automobile while he was walking along a street. He maintained that the City was negligent, in part, for failure to provide walkways and to provide adequate street lighting. The majority of the Fourth District Appellate Court held that the City owed no duty to a pedestrian in the exercise of its control over the street. The court distinguished the use of the street by a motorist, a permitted user, and a pedestrian. The dissenting opinion disagreed with the conclusion of the majority that the street was “designed and built solely for vehicular traffic.” The dissent added the following observation:
“ “*** When highways are not restricted by their dedication or statute to some particular mode of use they are open to all suitable methods of travel. A street is made for the passage of persons and property, and the law cannot define what exclusive means of transportation and passage shall be used.’ Molway v. City of Chicago, 239 Ill. 486 at 490.” (Emphasis added.) 13 Ill. App. 3d at 478 (Moran, P.J., dissenting).
I agree with the dissent that the supreme court in Molway rejected any argument that a street is designed and built solely for vehicular traffic. In that case, the plaintiff, a bicycle rider, was injured when he rode into a hole in the street. The City assigned as error the refusal to instruct the jury that “ordinary travel does not include the use of a street by one riding a bicycle thereon.” (Molway v. City of Chicago (1909), 239 Ill. 486, 488.) The appellate court affirmed the trial court and was in turn affirmed by the supreme court. The supreme court rejected the argument “that to make the highways or streets reasonably safe for bicyclists using reasonable care would impose more onerous duties upon municipalities than to keep them in repair for pedestrians or horse-drawn vehicles.” (Emphasis added.) (239 Ill. at 490.) Apparently, it was a given that pedestrians were permitted users of the streets.
At this point I wish to make it clear that I do not maintain that a municipality may not appropriately circumscribe areas to be used by pedestrians. To illustrate, in our recent decision in Prokes v. City of Chicago (1991), 208 Ill. App. 3d 748, we held that the City of Chicago owed no duty to the plaintiff for injuries suffered while riding a bicycle on a sidewalk, contrary to an ordinance. We reasoned that a person in violation of an ordinance could not be considered a permitted user under the statute. That same reasoning supports the distinction to be made in two other cases cited by the majority. In Risner v. City of Chicago (1986), 150 Ill. App. 3d 827, 502 N.E.2d 357, the First District Appellate Court affirmed an order of the circuit court granting the City of Chicago summary judgment. The plaintiff was struck by a Chicago Transit Authority bus as he stepped off a sidewalk curb and attempted to cross Adams Street in the middle of the block between State and Wabash Streets in Chicago, where neither crosswalk markings were painted nor any other traffic regulation signals existed. The appellate court identified the plaintiff as a “jaywalker.” (150 Ill. App. 3d at 830.) Although the opinion does not expressly say so, the plaintiff was in violation of the Traffic Regulations of the Municipal Code of Chicago. Section 27 — 282(b) then provided that “[n]o pedestrian shall cross a roadway other than at a crosswalk in any business district.” Similarly, in Mason v. City of Chicago (1988), 173 Ill. App. 3d 330, 527 N.E.2d 572, the plaintiff was injured while crossing a residential street in mid-block. The plaintiff conceded that she was a “jaywalker.” I assume that she also was in violation of some part of the city ordinance.
The other case relied on by the majority, which may be distinguished, is Crutchfield v. Yellow Cab Co. (1989), 189 Ill. App. 3d 1091, 545 N.E.2d 961. In that case the decedent was killed after she left a Chicago Transit Authority bus and was struck by a Yellow Cab taxi when she was attempting to cross the street. The decedent’s estate sued a number of defendants including Yellow Cab, the Chicago Transit Authority and the City. Yellow Cab filed third-party contribution actions against the Chicago Transit Authority and the City. The trial court granted summary judgment for the City and the Chicago Transit Authority on the estate’s complaint and the third-party complaint. On the appeal the decedent’s representative conceded that no action for negligence could be stated against the City for failure to provide warnings, lighting, crosswalks, or sidewalks, where none previously existed, for the safety of passengers concerning the bus stop involved. (189 Ill. App. 3d at 1096.) The appellate court identified the sole issue to be whether the location of the bus stop itself constituted negligence. It was Yellow Cab, not the representative of the decedent, who argued that the City had a duty to refrain from placing the bus stop where it did. Consequently, I do not believe the issue in this case was decided by the appellate court in Crutchfield.
No purpose would be served to discuss in detail Vlahos v. City of Chicago (1990), 198 Ill. App. 3d 911, 556 N.E.2d 660, and Swett v. Village of Algonquin (1988), 169 Ill. App. 3d 78, 523 N.E.2d 594, also relied upon by the majority. Suffice it to say that Vlahos, in which the plaintiff was injured when walking to his illegally parked car, relied on Risner and Mason, and Swett relied on Deren and Risner. Respectfully, I disagree with their holdings.
The plaintiff has cited Di Domenico v. Village of Romeoville (1988), 171 Ill. App. 3d 293, 525 N.E.2d 242, in which the plaintiff was injured when he was walking to the trunk of his legally parked car and fell in a hole only “a few feet from plaintiff’s vehicle.” (Di Domenico, 171 Ill. App. 3d at 294.) The appellate court reversed a dismissal order and, in doing so, distinguished Deren. The court pointed out that in Deren the plaintiff was using the street as a sidewalk, while in Di Domenico, the plaintiff used the street as a passageway in order to get from his vehicle to the sidewalk and from the sidewalk to his vehicle. Di Domenico, it should be noted, was expressly not followed in Vlahos (198 Ill. App. 3d at 914). The majority seek to distinguish Di Domenico from this case because the decedent in this case was struck in the center lane of a six-lane highway. The majority then conclude that the plaintiff was like the plaintiff in Mason. In my judgment, the plaintiff in this case was not like the plaintiff in Mason. As noted, the plaintiff in Mason was an admitted “jaywalker” who, it is fair to assume, was in violation of a municipal ordinance.
The plaintiff also relies on two Illinois Supreme Court cases: Baran v. City of Chicago Heights (1969), 43 Ill. 2d 177, 251 N.E.2d 227; and Greene v. City of Chicago (1978), 73 Ill. 2d 100, 382 N.E.2d 1205. Both cases affirmed judgments for the plaintiff for failure of the municipality to provide adequate lighting. In Baran the plaintiff was injured when he crashed his automobile into a tree. In Greene, the plaintiff was struck while he was standing behind his stalled automobile on a street where the light was out. I agree with the majority that Baran is factually distinguishable, but I do not agree with the assertion of the majority that Greene involved the duty owed to a motorist. The plaintiff was not a motorist at the time of the injury. Thus, under Greene, if the decedent in this case had been struck while standing in the street behind his car and, under Di Domenico, he had been struck while on the street near the driver’s door, the majority concede that the City would owe him a duty. But, because he unfortunately was struck before he reached those positions of sanctuary, his cause of action must fall. In my judgment, such a result comes from an artificial factual distinction between this case and Di Domenico and Greene.
The latest case on this so-often recurring question is Princivalli v. City of Chicago (1990), 202 Ill. App. 3d 525, 559 N.E.2d 1190, which supports the plaintiff’s position. I disagree with the majority’s suggestion that the opinion does not establish the location of the plaintiff at the time she was injured with sufficient certainty. The plaintiff legally parked her car across the street from her home. She left the car, walked around to the rear and stepped off the curb to the street. “As she was crossing the street,” she fell after stepping into a pothole. (202 Ill. App. 3d at 526.) She was crossing the street “in mid-block outside of a crosswalk.” (202 Ill. App. 3d at 527.)1 The appellate court reversed summary judgment for the City and distinguished Vlahos (plaintiff was walking to his illegally double-parked truck); Mason (plaintiff admitted that she had been jaywalking); Risner (plaintiff had been jaywalking); and Deren (plaintiff was struck by a car while using the roadway as a sidewalk). If it may be said that a person who could have walked a half-block to cross the street may maintain an action, how can it be said that a person who would have had to walk a half-mile to cross a street may not?
The majority conclude that to impose liability on a municipality for injury to pedestrians in the street would be a “burden to guarantee the safety of pedestrians” and would require “tremendous” cost. This is, of course, an appealing argument — conjuring up the hobgoblin of a run on the public purse always is. It is the same argument that was raised and rejected in Molway 81 years ago (Molway, 239 Ill. at 490); it was raised to resist any change in the doctrine of sovereign immunity; and it was raised to resist the removal of the distinction between governmental and proprietary functions insofar as they related to municipal liability. It is also, in this case, factually invalid. Requiring adequate lighting no more “guarantees” the safety of pedestrians than it does the safety of motorists. The same lights paid for by the taxpayers shine on the pedestrians, motorcyclists, bicyclists and, of course, motorists with the same luminosity and the same fine impartiality. The law should too. Moreover, the pedestrian still must prove a case. He must prove that the lighting was inadequate, that the inadequate condition existed for a sufficient period of time to provide notice to the municipality and to give the municipality an opportunity to correct it; and the pedestrian must also prove that the inadequate lighting was the proximate cause of the accident. In addition, the City does not surrender its right to raise the defense of contributory negligence.
Last, as I previously noted, there is nothing to prevent a municipality by ordinance to limit the use of its streets by pedestrians. For example, the Municipal Code of Chicago provides as follows:
“Whenever, upon the basis of an engineering or traffic investigation upon any street, it is determined that pedestrian crossing between intersections shall be prohibited in the interest of public safety, pedestrians shall not cross between intersections except where there may be a marked crosswalk. Such regulations against pedestrians crossing between intersections shall be effective when appropriate signs of giving notice thereof are erected.” (Emphasis added.) Chicago Municipal Code §9 — 60— 010(b) (1990).
Under the majority holding, the driver of the car that struck and allegedly caused the death of the decedent would have a cause of action against the City for property damage resulting from defective lighting, but the slain pedestrian’s estate would not. To me, such a result would be manifestly unjust.
There are many municipalities, including the one in which I reside, that do not have sidewalks or crosswalks. Pedestrians are required to use the streets, even for retrieval of mail. I feel confident that all such pedestrians, when informed that a municipality’s duty to provide the adequate lighting their taxes paid for extended only to vehicular traffic, would not simply dissent, they would protest in the strongest terms.
In sum, the decedent was legally parked one-half mile from a crosswalk. He was not in violation of any ordinance. In my judgment, he met the requirements of the supreme court’s pronouncement in Molway v. City of Chicago. It is also my judgment that the City intended and permitted him to use the street in a manner and at such time as was reasonably foreseen by the City.
For these reasons, I dissent. I would reverse the order of the circuit court and remand the cause for further proceedings.
I have read the briefs in Princivalli which place the nearest crosswalk as a half-block from the scene of the accident. This is consistent with the appellate court’s determination that the accident occurred “in mid-block.”